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This Week in Tech 464
Leo Laporte: It’s time for TWIT This Week in Tech. A big week and we've got the best here to talk about it. Denise Howell, from This Week in Law and Natali Morris from NBC. And of course Tim Stevens from CNET. We’ll talk about the Supreme Court Aereo decision, Google IO and a new world record on Super Mario. It’s all coming up next on TWIT.
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Leo: Bandwidth for This Week In Tech is provided by Cachefly. At C-A-C-H-E-F-L-Y dot com. This is TWIT, This Week in Tech, Episode 464, recorded June 29th 2014
My Wi-Fi Muumuu
This Week in Tech is brought to you by Lynda.com, learn what you want when you want with access to over 24 high quality online courses all for one low monthly price. To try it free for seven days visit Lynda.com/twit2. That's L-Y-N-D-A dot com slash twit and the number 2. And by Nature Box, order great tasting healthy snacks delivered right to your door. Forget the vending machine, get in shape with healthy delicious treats like Roasted Garlic Pumpkin Seeds. To get 50% off your first purchase box go to naturebox.com/twit. That's naturebox.com/twit. And by Personal Capital. With Personal Capital you’ll finally have all your financial life in one place and get a clear view of everything you own. Best of all it’s free. To sign up go to personal capital.com/twit. It’s time for TWIT, This Week in Tech the show where we take all the tech news of the week, we masticate, we genuflect, we eradicate. I don't know, we do a bunch of stuff to do it and we spit it out in your little birdlike mouths.
Natali Morris: We regurgitate.
Leo: That's regurgitation. Thank you that's Natali Morris who is A plus in Bird Biology. Natali’s a contributor at NBC, long-time friend of the show, many times on the show. It’s great to have you back. Looks like you're in Lake Tinkie Winkie.
Natali: No I'm not.
Leo: Or you're home?
Natali: I'm in New Jersey.
Leo: Why are you not at lake Tinkie Winkie on this fourth of July weekend?
Natali: Well you know my husband works for a news channel so when it’s a holiday for everyone else it’s usually not for us so he works when there's holidays.
Leo: I as a long time broadcaster, I always work holidays and weekends. It’s terrible.
Natali: Yeah, yeah. You don't have them off.
Natali: But don't cry for me Argentina because I get to be on TWIT.
Leo: Actually, Argentina plays tomorrow I think so don't worry about that one. Also here Denise Howell wearing her EFF t-shirt. She’s of course the host of This Week in Law, blogger bagsandbaggage and we love Denise.
Denise Howell: Hi it’s great to be back.
Leo: A practicing working attorney on the show. What a thought.
Leo: That's why you're here today because the Supreme Court’s been busy and we need your help.
Denise: They have been busy.
Leo: We also welcome Tim Stevens from Engadget – I'm sorry CNet.
Tim Stevens: No, there you go.
Leo: Rewind, I was living in the past.
Tim: It’s only been a year now.
Leo: One of these days I’ll figure it out.
Natali: You can rewind a little bit and give me the CNet title.
Leo: Had you ever worked for CNet Denise? Because I work for CNet too.
Denise: I worked for ZDNet as well, I blogged for them.
Tim: That's close enough.
Denise: That's close enough right?
Natali: Are you part of the Facebook page? There's an Ex-CNet employees Facebook page.
Denise: Oh no, I’ll have to sign up.
Leo: I would win a prize because I was the fourth employee of CNET.
Natali: Are you part of that page? I’ll invite you.
Leo: I want to on that page because I was a Shelby [?] and the weirdo.
Natali: What's that?
Leo: Who was the other guy? I forgotten him, he got in trouble in the state of California for not paying his taxes. He bought a race horse because he looked it in the eyes and he could see it was a winner. I forgot his name. You know what I'm talking about.
Natali: Oh his reputation precedes him yes.
Leo: Paul Z Miner.
Natali: That's it, this is it, yeah.
Leo: And I remember he told me that Paul Z Miner at the University of Virginia, there's a Hall Z hall and a Miner Hall right and they’re right across the street because his family’s an old Virginia family. He comes from money and I was like the fourth employee. It was just the 2 of them when I was hired to be the VP of programming for one week and I was out the door.
Natali: And that was it. Were you there when Ryan Seacrest was there?
Leo: Oh no, no, no he came after me. I did their first pilot with Dvorak and I do way back. But that’s a long and boring story. Let’s get into the news because there's a lot of it. We’ll be talking about Google IO in a bit and do have the most valuable Gimmie. You know every year at Google Developer Conference they give away notebooks, they give away phones, they give away the Google Q which they never even sold. That's got to be worth something if you still have your Google Q. But this year, yeah you got Androidware watches, sure. But more to the point you've got cardboard. You have yours Tim because you were at Google IO.
Tim: I do yeah. I actually haven't opened mine yet. It’s still in the folded up form. Totally unopened, I'm going to shrink wrap thing, I'm going down the comic book store and get one of those acid free baggies I think, you put it in there.
Leo: You should.
Tim: Store it for a couple of decades.
Leo: We just checked on ebay, 86 buck for Google cardboard unopened. Assembled I think is going to be less valuable but unopened—
Tim: I actually did ran out of them. I know some people who were at the keynote who came out the door too late and weren't able to get them so you did have to get out there early.
Leo: Oh I got mine. Gina and Jeff were there, I was there but they gave me mine. This was a flat piece of cardboard. Gina took the time to assemble it in the car ride up here. It’s got little magnet thing on the side with a rubber band. It’s got some plastic lenses. That's the only thing that’d be hard to get. They do have the plans online. And then you can either go to a website or download on the Google Play store the free cardboard app. You put on your smartphone, it has to be an Android phone and you put the smartphone in here. it senses that it’s in the box and it gives you a VR view and I think the whole thing is that for a buck fifty they made something that's worth – that does the same thing Oculus Rift does for 2 billion because it does. It’s stereo, it’s better.
Tim: It’s pretty impressive, it’s pretty great how they were able to put that together for something so cheaply and people were very excited to see it. I mean I tweeted when I got mine and I don't know how many hundred retweets it got out of that thing. But yeah it is an interesting way to get VR in the hands of more people. I mean people have certainly heard of VR for a very long time and not everyone has had the chance to try out Oculus. And you know this isn't as good as Oculus but it certainly pretty damn close.
Leo: I think it’s better than Oculus. How is it not as good?
Leo: So here's a – first of all Oculus, okay so it’s using an Android phone, apparently that's enough compute power to do what Oculus does. This was the very first fun they put out on the Moto X. Where it’s a game where you look around and you follow a hat. It’s called Windy Day. But if you put it in here and you don't let your camera fall out, as you look around I wish you could see this but as you're looking around, you look down, you look up there's the hat where’d it go? Wait a minute, wait a minute, and the accelerometer on the phone works.
Natali: How big is that? Because Android phones vary so much in size, how do they make it so—
Leo: Yeah this is a 5 inch, this is the HTC One, it’s five inches but it would fit a variety. As you could see it’s – you know I would think it would make the 6 inch.
Natali: It scales.
Leo: It scales because it’s got little lenses and you know what? How is it not as good as Oculus Rift?
Tim: I just don't think that the optical quality is quite as good as an Oculus given that it’s dealing with multiple size phone I think the lenses are a little bit cheaper. But yeah I mean it’s nine tenths of the way there for like you said a small fraction of the cost. [?] ship something through the mail for you know a buck 25 and they get a feel for what VR is like and whether or not they should get excited about it.
Leo: Yeah, and who doesn't have an Android phone, you could do this. And somebody says your arms will get tired. Well it’d be easy enough just to glue a little rubber band, you know strap. Actually I have a rubber band.
Tim: Duct tape will work too.
Leo: Just put this on.
Denise: You're going to get more grief from wearing that than wearing glass.
Leo: See Google’s had problems because they give away such great stuff. You know they gave away thousands of dollars of stuff last year that nobody can get in anymore. They had a lottery to get in. I think half the people going there aren't developers. They just want free crap. So give away card board and maybe it’ll be easier to get in developers’ conference. And frankly this is giving me a lot of joy as you can see.
Natali: I can see that.
Tim: They wanted free stuff or they wanted to protest. One or the other but those were the two hot tickets, the cardboard or protesting.
Leo: Yeah we noted that Google at the beginning of the IO Keynote noted that 20 percent of the attendees at Google IO this year female but I want to point out that 50 percent of the protestors were female so they're still some catching up to do. Here's my Oculus Rift.
Denise: We got tweeted from – let’s see, who is this Grajib on twitter that the Dodo case people are making their own model and they're calling it the Google cardboard VR toolkit for 19.95.
Tim: Not bad. Cheaper than ebay.
Leo: And there's not wires. It’s wireless. They have a museum tour. They have a tour of versaille. I mean I think, I don't know, I think this does everything the Oculus Rift does. Anyway, that's enough of that. We’ll talk about what Google announced at Google IO because it’s kind of mish mosh. I want to get everybody involved in that. But before we do, we should talk about the Supreme Court because [?] was a little bit busy last Friday with two I think – well important rulings. One maybe a landmark ruling. But let’s start with a less important ruling and that's the one that's got all the geeks a head up. That's the Aereo ruling. Now Denise had a great This Week in Law on Friday discussing the Aereo ruling. And I certainly point you to that show if you want to really go into detail. It’s called monkeys, ducks and unicorns. And one of your guests was Sonja West from the University right?
Denise: Right, there was [?].
Leo: She was an expert on this whole issue. But maybe Denise you can kind of summarize what did the Supreme Court rule?
Denise: Well the Supreme Court tried to do something very limited and say that somebody who is doing what Aereo does in a way Aereo does it is directly infringing copyright law by engaging in a public performance of the copyrighted works here the free over the air broadcast television that Aereo was providing to its customers via its series of tiny dime size antennas.
Leo: ABC had sued saying that Aereo was illegaly retransmitting ABC television programming via the local television stations.
Denise: Right, ABC and other networks. It’s been a very long and arduous and multi-jurisdictional world of litigation around this issue because Aereo was not the only company that has tried going after this using this kind of technology. So we've had conflicting decisions from around the country at the federal court level and what the Supreme Court was specifically looking at was an injunction against Aereo that was declined to be put in place by the New York Federal Court of Appeal. So the lower trial court—
Leo: The lower court said Aereo was okay.
Denise: Said Aereo was okay for now doesn't need to be enjoined, we're still going to have a trial on all these copyright issues but what you haven't done broadcasters is show a strong likelihood that you're going to be able to demonstrate at trial that Aereo directly infringed copyright. And that’s a big distinction whether Aereo directly infringed or whether it’s user are somehow engaged in copyright infringement because you think back on the history of the kinds of copyright cases the Supreme Court has considered. You think about the Grokster case, you think about the Betamax case way back then. We're talking about things that could be copyright infringement by the users but the person supplying the intermediary technology may or may not be responsible for what the users are doing. And here the direct question before the court was is there – is Aereo itself performing, we know there's a performance going on of the copyrighted works that the broadcasters are putting out there but is Aereo doing that performance or is the performance happening on the viewer side. And that turns out to be a very important distinction under copyright law.
Leo: So the fact that Aereo won this decision all that means – does that mean now that the injunction will be in effect? It means that Aereo has to go back to the lower court.
Denise: It means that Aereo has to go back to the lower court.
Leo: The trial is still on. There still will be a trial right?
Denise: Right, and under this decision from the Supreme Court there should be an injunction against Aereo’s the live broadcast, the near live broadcast apect of Aereo’s business.
Leo: And Aereo has just kind of unilaterally decided to suspend business.
Denise: Which is sad because if they don't go ahead and litigate out the issues in this case we're not really going to reach the complicated nuances here that I think you know still need to be explored. The Supreme Court looked way back to the late 60s and 70s before the 1976 copyright act and said basically the majority opinion authored by Justice Brior said you know our hands are kind of tied because we had some opinions that we the Supreme Court are predecessors on the Supreme Court authored way back in the 60s and the 1970s that looked at the community access television system, the old cable system where people would put antennas on hills because people did not have good reception at their homes and not powerful enough, amplified enough reception to really make use of free over the air broadcast television. And we have decided in a couple of those decisions that there wasn't a public performance going on. There wasn't a performance going on at all. And you know what Congress did, they came in in 1976 and undid those decisions that we made.
Leo: They gave the copyright owner exclusive right to perform the copyrighted work publicly.
Denise: Right and they decided that cable companies were actually doing that. And if that's the case and then you know you were talking before the show about now all the regulations and requirements that are incumbent on cable companies because of the role that they are playing in passing along the signal, the free broadcast over the air television signal to their customers. So the court went through really strange machinations of you know just could really I think get its head around Aereo’s technology very well or the fact t Aereo’s technology should be treated different then an antenna on a hill that lots of people are sharing.
Leo: Okay so that's point one and I mentioned before we began that I think my position on this is contrarian to what most geeks feel like. Because I think geeks love Aereo, they love the idea of screwing the cable companies. Screwing the networks that nobody loves either. And why shouldn't we be able to pay eight bucks and be able to watch TV over the air using these antennas? But it strikes me is Aereo’s doing exactly what the original cable system was supposed to do.
Natali: Which is why we heard so many of the dissent and most of the judges actually who ruled for this, like Justice Sotomayor was saying like she kept scratching her head saying why is this not a cable company?
Leo: How is this not different?
Natali: … cable company. Right when if you really look into the technology clearly it’s not a cable company.
Leo: I disagree, I think it’s exactly the same thing as community access television. I think it’s exactly the same thing. Now understand cable doesn't do it this way anymore but in the original days as Denise was saying, they put up an antenna because you could get it and they ran a cable to your house and everybody who subscribed to that cable company use that antenna.
Denise: But everybody did have their own antenna.
Leo: Well first of, first of all, I know this wasn't our—
Natali: Right and you're timesharing an antenna so you have the same right to it in a way that you don't with a cable company. It’s a lot like a timeshare, like those timeshare solar gardens that are popular these days. Like you're paying into the hardware—
Leo: First, how does this change your argument? If the dime size antennas are lies, does this change your argument?
Natali: No, no.
Leo: Because I want to point out that antenna experts have said and I’ll point you to this article from Pete Putman, HDTVexpert.com that in fact it’s not possible that these dime size antennas could effectively receive the transmission. They're too small, they're probably acting as an array despite what Aereo says. Now I admit this was not argued in court. In fact what the court decided is we're not even going to think about the technology, let’s just see the end result. And I think that the court probably was right because you could debate this issue the dime size antenna issue till the cows come home. But they stipulated that Aereo was telling the truth. I don't think Aereo is telling the truth. Aereo is doing two things to get around the copyright act. One is the dime size antenas, two is the six second delay. But in fact isn't it doing exactly the same thing as a cable company does, really? From the point of view of the user, from the point of view of everybody else.
Denise: Well certainly the majority of the Supreme Court felt that way.
Leo: I think they got it right.
Denise: The very well-reasoned Scalia descent points out why we should consider it that way and Justice Scalia joined by Justice Thomas and Lito.
Leo: The most conservative members of the court.
Denise: Right, exactly.
Leo: And I think they were giving it constructionist argument. I don't think that they were arguing in favor of the technology but they just were uncomfortable with the court overreaching.
Natali: And I think they were worried about the precedent and cloud computing in general because in this way we can call iTunes match a cable company if you and I just play the same album at the same time. We're forgetting about the—
Leo: Well we pay for and iTunes pays for it. And so I think Aereo gets around this and knew it from the beginning by paying retransmission fees like a cable company and then it’s all legal.
Denise: Here's what Justice Scalia would say to you Leo. He says I share the court’s evident feeling that what Aereo is going or enabling to be done to the network’s copyrighted programming ought not to be allowed or perhaps we need not distort the copyright act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined. We've never even gotten to that issue in the case. As is its primary and secondary liability for reproduction infringement. If that does not suffice then assuming one shares the majority’s estimation of right and wrong, what we have before us must be considered a loophole in the law. It is not the role of this court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them and the role of congress to eliminate them if it wishes. Congress may do that I may add in a much more targeted better informed and less disruptive fashion than the crude looks like cable tv solution the court invents today.
Leo: Well it sounds like Justice Kalia Thomas and Lito merely said we shouldn't have taken this case in the first place right? That's what they're saying.
Denise: Umm, no.
Leo: Or having taken it we shouldn't make a ruling?
Denise: I think having taken it we should find that there's no performance going on here is what they would say under the technology that they're reviewing and 3 dissenting justices rejected this whole notion that we can’t look under the covers or behind the scenes and that that wouldn't be important. What's only important is the impact because in other cases we definitely look under the covers.
Natali: The user experience.
Denise: Yeah, we definitely look at what the technology is doing. And the Cable Vision case that blessed the notion of a remote DVR, how the technology works is very important and whether the user were directing the performance. Which is selecting the item.
Leo: What if I put myself in the position of the content creators, the networks. What if somebody were to take TWIT and rebroadcast it in some form, charge people 8 bucks to do it. Add to my audience, great but in a way that I can't count and monetize it. I would be pissed off. And I think I would have a right to recourse. Don't these companies—
Natali: Doesn't that happen, there are plenty of podcast apps that maybe rebroadcast—
Leo: They do and our rule with those like Stitches a good example is they have to, they cannot keep a copy of it on their servers. They must merely provide an interface to our copy which we count. So they don't cash out content, they come, they just provide an interface to get it which is fine with me because I can count it. But I've always had the rule that if somebody comes along and says, and by the way there's that guy in LA who has that, what is that bizarre business where he’s rebroadcasting stuff completely illegally over the internet. When he rebroadcasts us, it’s my position because I can't count that rebroadcast. It’s not his right to do that. Is it not.
Denise: Right, and I think we're talking apples and oranges is the problem. We're not talking about free over the air broadcast TV brought down by an antenna and whether it matters who has the antenna. We're talking about something completely different, a piece of video that you put out under a certain license and certain uses are allowed under that license. You also make it embeddable via Youtube so you know being able to embed around the internet is fine if you're doing it consistent with the terms.
Leo: So because I don't do TWIT over the air for free it’s not related, it’s different.
Denise: I think it’s different, yes. I think that one of the things the [?] is concerned about—
Leo: The fact that Filmon.tv, and this guy, I don't know why this guy is still in business rebroadcasts TWIT and by the way everything else it looks like in the world.
Denise: So that he copies and rebroadcasts or does he embed?
Leo: Yeah, copies and rebroadcasts.
Denise: Yeah so that’s I think pretty clearly if you know I'm not here to give the network legal advice but I think if you consulted with a lawyer you might find that that could well be actionable depending on how it’s happening.
Leo: So the different is because he copies and rebroadcasts it. And Aereo has always said this, our business is to rent an antenna.
Denise: Right, our business is to rent an antenna and under the—
Leo: But isn't that what the cable companies’ business was?
Denise: It was but it was one antenna on a hill, you know the fool on the hill being shared by many and we're not talking about that situation here. we're talking about much more I think the Cable Vision situation where was the particular user directing the particular recording on the remote DVR. That decision was never taken up by the Supreme Court. They had the chance to decide that that was wrongly decided in one way and they didn't do that. So it’s still the law until the Supreme Court Decides otherwise and I think they've kind of you know, the majority decision doesn't even really address that they may have monkeyed around with that and in fact went out of its way to say we're not touching the DVR aspect of Aereo’s business, that's not in front of us right now but I think you can't really get around the fact that their decision impacts not just remote DVR services but potentially things that professor Goldman has a great article on 4 unanswered questions that the Aereo case leaves. And one of those unanswered question is well if we're not going look at how things work technologically and whether technologically they comply with what we've decided is okay under the law or not then things like embedding could well be jeopardized you know, it’s hard to tell if that Filmon is embedding or copying. You have to go behind the scenes and under the hood to figure that out. And you know should it matter? Well the law has always said that it does. So it’s a dangerous precedent in that way.
Leo: I hate to get in bed with Scalia, Lito.
Denise: Embrace the Cicilian Leo.
Leo: …and Thomas and say that basically Aereo is like a copy store with library cards.
Denise: Yeah that's not the greatest analogy.
Leo: Doesn't it really? I feel like if this is, these are the guys we're going to say oh they got it right. Huh? Tim you haven't said a word, what do you think?
Tim: Well it’s because I think Denise has got a pretty good lock on the situation. You know my non-legal gut instinct, I tend to agree with the dissenting opinion here. I mean I think it is a loophole that's being exploited by Aereo but I think it is ultimately a loophole and you know I don't know where you draw the line. If there's one antenna for me that somebody else is leasing to me and that’s legal. You know if there's 2 antennas that somebody else is leasing to 2 people, that legal. You know at what point does it become illegal. And of course, as you mentioned, if indeed this is all a bit of a line on those are antennas are all acting series then that's a different story altogether.
Leo: Does that change things?
Tim: In my eye it absolutely does, yes. At that point then there's no doubt that they are breaking the law. But you know taking things at face value and assuming that they're not set lines to us then yeah I don't see why this would not be the same as having a bunch of separate antennas and leasing those individually. So I am a little bit disappointed by the ruling but ultimately I'm not surprised at all by the ruling. This is pretty much how I expected it to go down.
Leo: We're going to wrap it up, but just to get clear in my mind Denise, if – this is kind of like a hypothetical, if what they were doing is just passing it on like the consumers choosing the channel, the consumers choosing what to watch, Aereo’s doing nothing but letting them do that and pass it on that would not be a public performance, that would be legal?
Denise: No, I don't think that's quite what the court in the majority decision said. What is says is there's—
Leo: What did the Court, did the court give any direction to Aereo about how they could make this legal?
Denise: Uh no, did not really. Just looked at what it was doing and said—
Leo: Said you can't do that.
Denise: …we think you're like a cable company and what you're doing is skirting the law. You know we had some cases on the books in the late 60s and 70s that embrace what you were doing you know in the form of what the cable companies were doing then.
Leo: The Cable Vision case yeah.
Denise: And we think Congress in 1976 expressly enacted that it goes so far as to say that we think Congress enacted the 1976 copyright act specifically to undo these 2 decisions that Supreme Court had deciding cable companies were not publicly performing and it just decided so much that what Aereo was doing looked like what they were doing that it ought to be treated the same way. And I think although this does not come through, it is not expressly stated in the opinion, I think there must’ve been some sort of underlying concern that if we go ahead and say that this is not a public performance then the cable companies all they have to do get out from under all the must carry and retransmission fees and licensing consent requirements that they are under now that are very heavily regulated industry that they are. All they have to do is adopt Aereo-like technology and they're golden. They're no longer cable companies either. And I think the court was concerned about that kind of thing. Again this is just my guess on that front.
Leo: In the oral arguments they were very concerned that whatever decision they made would impact services like Dropbox. Do you think that the decision they've made, I think you brought this up to Natali, the decision that they made now does put Dropbox into tenuous position? Or no, it protects Dropbox?
Denise: You're asking me or Natali?
Leo: No I’ll ask Denise then I’ll ask Natali. You're the lawyer here, we're going to put you on—
Natali: Don't ask me I think that's the question I don't have the answer.
Denise: I think the Court is trying hard not to jeopardize services like Dropbox and Google Drive and say hey if you're not dealing in free over the air broadcast television this decision won’t apply but I'm not quite sure when you read through the dissent and there are good arguments why it’s difficult to draw lines. You know it’s going to be fuzzy as to what's a public performance and as Justice Scalia says, it looks like the standard will sell confusion for years to come and I think that we will see some confusion around what constitutes a public performance after this decision.
Leo: But the Supreme Court’s job is to try to infer what the intent of the legislation was and to enforce it in a way that's consistent with the legislation right? I mean they're not overstepping their bounds, that's what they do.
Natali: But they also know that what they do is set precedences which is why I think Scalia was so uncomfortable saying we are trying to ensure that this won’t set a precedence but we cannot assure that.
Denise: Right, and if congress intends for things that are not cable companies to be treated like cable companies maybe congress should say that.
Leo: They should say that, they should say that not the court. But this happens all the time. The court’s always making decisions about what it thinks congress meant. That’s a lot of what the court does right?
Denise: Yes, exactly.
Leo: Fox is already using Aereo’s defeat as ammunition against Dish. By the way they're revisiting a case they already lost saying but wait a minute, maybe we shouldn't have lost this. They're going back to the court. So this is just the beginning. Fox’s lawyer Richard Stone wrote a letter to court saying Dish which engages in virtually identical conduct when it streams Fox’s programs to Dish subscribers over the internet has repeatedly raised the same defense as Aereo. Those defenses have not been rejected by the Supreme Court. They're trying to have the case reheard. Okay, a couple of things to point out. Yes of course Aereo was trying to take advantages of loopholes, you could call them loopholes or just the way the law was written. They worked very hard when they first created the business to you know create a business that was legal, that was based on the law. And some have said well that's wrong. You know the intent was to circumvent but you know they try to use loopholes to get away with it. But hey that's what happens, every company does when they try to avoid paying taxes to. You find the loopholes and you use them. That's not illegal and their intent – the Supreme Court’s not ruling on the intent whether they intended to violate copyright right? Or are they?
Denise: Well there is this volitional aspect to copyright infringement and it comes in to play in the Cable Vision case and whether the user is doing the selecting or the intermediary technology entity. So it comes into play there and if you're just passing through and allowing the user to do the selection you know I mean Cory whether it really makes sense to be able to go after all of Aereo’s users for copyright infringement but that's you know what we've seen in the movie industry and the music industry in other similar situations. So yeah you might find yourself in that kind of weird world but the other thing that could have put Aereo on the hook, getting back to direct liability or indirect liability is if it’s inducing users to infringe and that's what did away with Grokster.
Leo: Grokster didn't infringe but because they gave users the ability to infringe and incented them to do so it was deemed illegal.
Denise: Right so the direct infringement thing is what's really problematic here.
Leo: Right. The other thing I think that comes up is that a lot of people are upset with the decision not on the law or the merits of the law or whether the Supreme Court’s right or wrong but just because they wanted Aereo to succeed. I think that's the vast majority of geeks. We just wanted this way to do this.
Denise: Right, Doc [?] put up a good post today just sort of lamenting the fact that Aereo did not position themselves differently in this case and did not come across not as the you know person providing you with a dime size or the company providing you with a dime size antenna but instead the company providing you with the ability to actually receive free over the air broadcast because as Doc writes in his post that's virtually impossible to do in a lot of places and—
Leo: Doc by the way agrees with me he says the court was right that Aereo should've cleared performance rights with the stations and didn't. But I think he makes the right case which is that Aereo made the wrong case.
Denise: Yeah that Aereo might’ve wanted to do a little different kind of approach to what their business was.
Leo: Yeah and he says Aereo is a perfect example of the marketplace at work. After the digital TV transition, Aereo fulfilled a demand that existed because people could no longer get over the air signals.
Leo: Aereo met a market demand and that's how these things work.
Denise: I don't know that it would've done a lot of good because that's what the original cable companies do, did to and whether you should even consider Aereo a cable company is really the crux of this case.
Leo: And sometimes we in our zeal to new technologies and to cut the cable and all of this, we forget that people who create content do deserve to get paid for it, do have rights to be protected. There are reasons why there are patents and copyrights, these are not uniformally bad things. In fact they're very good things and they do support innovation. Innovation comes when you have a feeling that you can make some money on it. That there's a reason for you to innovate not just because of hey it’s a good thing I like to do this but because it’s a business.
Tim: I can't help but wonder if Aereo had partnered up with Nealson to be able to provide ratings and viewership numbers back to the broadcasters and in fact we thought that those eyes were counted, that might’ve changed things a little bit because ultimately you know for over the air broadcast, this is the only way that these companies really have an idea of what people are watching. Cable can get views obviously and through streaming networks of course know what's going on. But beyond that it’s pretty much relying to Nealson numbers and I wonder if they had done something there so that those numbers get back, the advertisers always would know what’s going on that might’ve helped the case a little bit.
Leo: I think frankly if Aereo had gone to the locals and said we want to retransmit, you give us permission, this is what a cable company does, if you give us permission and the locals say yeah but you got to pay me ten cents a subscriber and agreed to that, admittedly they wouldn't have had an eight dollar a month service but they would also be legal. And I fell like Aereo really has set us up. Said you could have an eight dollar a month service, we just do these things and magically it’s legal and they've been proven wrong. So for people to get upset—
Natali: Well now you're getting into economics though because what is the cost is definitely not what we pay our cable companies. That is not the cost we pay for a lot of things we do not consume. And so the cost is if I'm talking on behalf of the user inflated. But you're right it’s not eight dollars a month and it’s not sixty like the real cost of what we consume is somewhere in between.
Leo: Somewhere in between there I agree. Well in fact that was an opportunity for Aereo then.
Natali: Yeah I think so too.
Leo: Price it right, pay the retransmission fees but it would still be less then cable. And maybe you know I don't know I just, I do feel like Aereo there was a wink wink nudge nudge in Aereo’s business model right?
Natali: There was a kind of middle finger there.
Denise: I kind of feel like Justice Bryor what I'm talking about we're not going to look at what happened behind the scenes is kind of like saying we're not going to look at they're trying to end run.
Leo: No, no and he was right not to. That's probably right, the court should probably not do that because that's hard to determine somebody’s intent.
Denise: No I mean technologically behind the scenes.
Leo: Right and I think that's I also right because they would've gotten out the weeds. They don't have all day to do this. They got a lot of work to do.
Denise: Yeah in these cases you need to look.
Natali: Well they're trying to go on vacation right?
Leo: Right they want to go on vacation. They only have October to July, they got stuff to do, they go some fishing.
Natali: They're working up against a break that's why we got 2 big rulings and they're like all right, we're not agreed but we got to get out of here so that's it.
Leo: I frankly doing think the Aereo case matters all that much because it seems to me in five years, sooner or later everything will be on the internet. That's where it’s going. These last gasp lawsuits are merely an attempt to keep the business model going a little bit longer but just as with everything else it’s all going to be on the internet. None of this is going to matter in the long run. This is a short term problem. Aereo was solving a short term problem issue and am I wrong on this, I mean I understand that cable companies and television companies are going kicking and screaming but at some point sooner or later it’s going to all be on the internet.
Denise: Yeah it’s just a question of what it’s going to cost.
Denise: And the—
Leo: Well that's why Comcast is doing what it’s doing. To become the evil empire because they want to make sure that if they can’t charge you for HBO and Showtime and a package of stuff just so you can the World Cup, at least they could charge you through the Wazoo for your internet access. And notice by the way if you look at the pricing, the pricing of cable with internet and cable without internet cable tv with internet cable without internet has gotten closer and closer and closer. The differential is very small. And it’s getting smaller all the time because they know eventually they're not going to be able to charge you for television. But they're going to get it out of you for cable, for internet rather.
Leo: Are we all in agreement that – Tim do you agree that – what's the time frame you think before all content is on the internet, period?
Tim: Yeah I would say five years might even be pessimistic but yes certainly in the very near future. At least you know here in the United States anyway, I think that would be in probably 2 or 3 years we’ll see all but very fringe content you know like RFDTVl which has cattle auctions and things like that. [?] take a little bit longer to get over.
Leo: Cattle auction’s the first thing that should go on the internet.
Tim: I actually used to enjoy that channel when I – brought me back to—
Leo: You should come to Petaluma, we got an auction house right here. Yeah it’s great.
Tim: I know I've walked by there.
Denise: I assume you mean legally on the internet.
Tim: Yeah legally on the internet.
Denise: Legally in an authorized and [?] fashion.
Leo: Everything can be gotten on the internet right now but legitimately legally with the sanction of the content creators.
Tim: Yeah I would say 3 to 4 years in the outset.
Natali: And when the content creators then break the model so that you can subscribe to one channel without all of the rest of them because that's what really pisses us off so much about the cable companies is no so much their service or lack thereof but paying for things that we don't consume and wanting to buy a cable package that doesn't include whatever that channel you just were talking about. Of course whatever.
Leo: Horse auctions, no I think truthfully the real people behind this, the one who are most concerned about Aereo were the cable companies because what they – you know it’s – yes it was the content creator suing but I think the cable companies do not want this to change. They need to preserve their power as long as possible. Otherwise HBO and ESPN and everybody else is just going to go directly to the consumers and say pay us ten bucks a month for HBO GO, disintermediate Comcast, who needs them.
Natali: Right, yeah.
Leo: And the only reason they don't do this is they're terrified of Comcast.
Leo: They can’t afford yet to do that.
Denise: Then you get into the legal issues around those aggregating the you know wild and willy world of disaggregated everything on the internet.
Leo: That's the way it should be.
Denise: Bundled for you and someone tries to bundle it that was Google TV’s issue right?
Denise: That's you were going to be able to select your CBS and NBC online.
Leo: Yeah, they didn't like that.
Denise: No they didn't like that at all.
Leo: I should be able to buy, forget channels, I should be able to buy Game of Thrones. I shouldn't have to buy HBO, I shouldn't have to buy a package from Comcast. I should be able to buy Game of Thrones and you know what, when that happens it won’t be HBO who’s producing it.
Natali: You can though. You can buy it by episode.
Denise: It’s a wait
Leo: A year later.
Leo: But what's happening and I think the music industry realized this is the who you're competing against is Bittorrent. The real competitor is Bittorrent because they're offering it for free in high quality the minute the show ends. Illegal obviously right? All right we're going to take a break because there was a I think much more important Supreme Court decision regarding cellphone searches and again we’ll go to our legal beagle, Denise Howell who’s going to give us the information in just a moment. Really glad to have you Denise from This Week in Law, a must watch every Friday afternoon on TWIT. From NBC, the wonderful Natali Morris. So far no children eruptions, no puppy eruptions.
Denise: Oh gosh, you just doomed us
Leo: But we do have bird eruptions from Tim Stevens. He’s up and up in New York State. He of course works for CNET. Got it right this time. Our show today brought to you by Lynda.com, the best place to go and learn what you want at your convenience. Lynda has over 2,400 very high quality courses in every aspect of technology. Whether you're a developer, a designer, a photographer they even have business classes. Things like how to negotiate a contract, how to write a resume. You can learn it all, watch, listen, practice. Learn with Lynda, L-Y-N-D-A dot com. They just released the new iPhone and iPad app for IOS 7, it’s just gorgeous. They've also enhanced their Android app by adding Chrome Cast support so now you can watch Lynda everywhere, including your big screen TV via your Chrome Cast. The IOS app has a beautiful intuitive interface. Both apps offer online course and video viewing. By the way with the courses, you get more than just a video. You also get the transcripts, you can jump right to a particular part of the course. If there's some particular thing you want to learn and you might say well I don't want to pay for a whole course if I'm only going to you know look at one part. Well the good news is it’s a flat rate. You pay a monthly fee, 25 dollars a month and you get access to everything. So you can learn just the stuff you want to know. Lynda’s instructors are the best in the world. The people we work with in many cases. Great photographers, designers, Bert Monroy love him, does a great Photoshop show every week at Lynda.com. Courses for every level, beginner, intermediate, and advanced. Whether you have 15 minutes or 15 hours you can learn at Lynda.com. Many companies have Lynda, including ours have Lynda accounts. You know we're moving to premier, we send our editors over there if they want to polish their Premier skills. It’s 37.50 a month for the premium plan. Then you get the exercise files that let you follow along with the instructors. That's great for Photoshop or Final Cut. You can also try it right now with our free trial, seven days unlimited access to Lynda, L-Y-N-D-A dot com slash TWIT2. Lynda.com/twit2, you'll get all of the courses. At last count, let me see how many courses they've got online, some huge number. You can get every one of those courses, 2,701 of them. Many tens of thousands of hours of absolutely free for seven days. How much can you learn in seven days at L-Y-N-D-A dot com slash TWIT and the number 2. Lynda.com, we thank you them for their support. I've known Lynda Weinman since screensavers day. So they've just done such a good job. So the same exact time as they released the Aereo decision, they released the cellphone decision. And I think this is a very good news for privacy in this country. Even if you have been arrested, the police still must seek in most cases a warrant before they can search your cellphone. And we know law enforcement actually has boxes they could plug into your phone and dump all the data off of it and they do often routinely do that. But the Supreme Court ruled Wednesday that you got to get a warrant. Is that good Denise?
Denise: Oh it’s fabulous.
Denise: Riley vs. California is the case. Unanimous decision of the Supreme Court which you know you get a lot of court watchers saying what that means and if that's really and truly unanimous or if you suggest Leo they're ready to get done with their term on—
Leo: Wheelin and dealin behind the scenes. I’ll trade you an Aereo for a cellphone, yeah.
Denise: Right, but yes here we have the court actually really showing a good grasp of what new technologies mean and how they impact people lives and the different between being able to search someone’s pocket for a weapon or something else that might hurt an officer during an arrest of something else that might be informationally important do the arrest. Evidence that you could gather just by you know finding—
Leo: It’s all on my phone.
Denise: Exactly, no you're going to find lots of evidence on somebody’s phone but it’s going to be stuff that not only could convict them that is going to be a lot of other stuff too.
Leo: So the case was a guy who was stopped for a traffic violation. They I guess must’ve given the probable cause seen weapons, he was arrested on weapons charges. The officer searching him sees the phone from his pants pocket. The officer accessed information on the phone, notice the repeated use of the term associated with a street gang. At the police station 2 hours later, the detective specializing in gangs further examined the phone’s contents based on photographs and videos the detective found the state charged the petition in connection with a shooting that had occurred a few weeks earlier and saw an enhanced sentence based on gang membership. He was convicted then appealed, California Court of Appeals affirmed but the—
Denise: And the California Supreme Court.
Leo: And the California Supreme Court but not the United States Supreme Court unanimously they said that was unlawful search and seizure. So what do we need to do now as citizens if we are stopped by the police and they say can I have your phone? Should we just say no?
Denise: Yeah you can say well—
Natali: You smash it right in front of them.
Leo: I’ll say you know in Riley vs. the state of California.
Denise: Smashing it, not such a good idea.
Natali: You eat it, eat the phone.
Denise: You could have obstruction charges against you under those kinds of circumstances—
Leo: Don’t do that either, okay.
Denise: But yeah, without a warrant they can’t search your phone.
Leo: Actually if you've done something wrong give them the phone. Let them say oh officer you're not allowed to search that but here and then they throw the whole thing out of court. Justice Roberts wrote modern cellphones, I love this, are not just another technological convenience with all they contain and all they may reveal they hold for many Americans the privacies of life. The fact that technology now allows an individual to carry this in his hand does not make the information any less worthy of protection. I love that. That's right on.
Tim: I also like how he said that the term cellphone itself is pretty much outdated and [?] effect of the cameras or journals or you know any sort of thing that should and is normally protected by law and I thought I that was a great point that he made as well.
Leo: According to the Daily Dot this review reverse a five-decades-old interpretation of the law that allowed arresting officers to search suspects’ pockets, phones and anything else within his or her reach. So this is kind of new law.
Denise: Yes definitely—
Natali: So wait they are allowed to—
Denise: It’s just not the same as a pocket. Yeah and they can, they can still you know the seat of your car, your pocket, they can pat you down you know. If the safety concern of the officer has always been, you can go ahead and do a search incident to arrest. But if you're going to search a cellphone this decision says you're going to need to get a warrant. And law enforcement was not wild about this decision and fought it because they said well particularly in today’s day and age getting a warrant’s not going to be effective because what if someone just you know, you got Apple, they've got this great remote wipe, Android does it too, we're going to have our evidence destroyed. And the court really showed a nice grasp not only of the nature of the cellphone but of how these things work. And the decision talks about as to remote wiping there are means to address that. First of all you can turn the phone off, then it can't be wiped. Bear that in mind law enforcement officers.
Leo: Right, right.
Denise: And also you could use a Faraday bag, would you ever have expected to see the words Faraday bag.
Leo: I have one of those.
Denise: …in a US Supreme Court decision.
Leo: The fact that they know such a thing exists is awesome. Obviously it was some smart clerk right who wrote this.
Denise: Such devices are commonly called Faraday bags after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil. Cheap, lightweight and easy to use. Then they cite the brief of the criminal law professors that was filed as an Amicus brief. So they're reading their briefs and they know what this stuff is—
Leo: Or a clerk is yes.
Denise: Yes, this may not be a complete answer to the problem but at least for now they provide a reasonable response they talk about not only the law enforcement agencies know what Faraday Bags are and use them and encourage officers to use them but they talk about the fact that a warrant’s a lot easier to get then it used to be too.
Denise: And that a lot of law enforcement officers can rely on like a 15 electronic email response to a request for a warrant. We're not talking a whole of hoops that need to be jumped through here.
Leo: The Daily Dot says in answer to a question what should you do, lock your phone with a passcode. If your phone is locked and or encrypted according to the ACLU the police may take your phone, may try to look at it unconstitutionally but they won’t be able to.
Natali: They can’t force you to put your finger on the indentification.
Leo: Yeah, if you forgot to lock your phone and don’t feel like it then calmly and respectfully, this’ll work, tell the officers his search is in violation of the constitution under the court’s Riley decision.
Denise: Yeah I mean that Daily Dot article has some great advice about saying look if you want to search my phone you need a warrant for that. If they want to go ahead though and do it that same article says just go ahead and let them do it. You know what the law is—
Leo: Right but you should out loud state I do not consent to this search and make sure the witnesses hear it. I do not, want to make this clear, I do not consent to this search because then whatever they find is inadmissible.
Denise: I got to good question from someone on Twitter along these lines, his name was Mark Jones. And he was sort of keying on the fact that not only you know do we keep everything on our cellphones but we have things like boarding passes and his particular case I guess his insurance card for you know showing that he has auto insurance on his cellphone and asking if you show that to an officer on your phone are you giving up your privacy rights to everything else on the phone? I certainly don't think so. You know, first of all you have to be, if you're under arrest is the only way that there could even be an issue about an officer’s ability to search your phone without a warrant. And just handing an officer an unlocked phone to show a particular item on there I don't think is communicating consent to search the phone but again you might want to say when you're handing the phone over hey I don't consent to you searching the whole phone.
Leo: I also might mention that the Electronic Frontier Foundation and the ACLU have pages called know your rights where you can print a PDF about what the police can and cannot do. I presume updated thanks to the most recent decision. Also a PDF of tips when confronted by the police. The thing I want to emphasize is this is not designed to you know somehow get gang members off because the police do have the ability to ask for a warrant, put the thing in a Faraday box. You know if there really is a crime, the police can pursue it. This is to protect our privacy against an overreaching police thing. And this is good, tips for talking to the police. There's a great long Youtube by youshouldneverevertalktothepolice that I refer you to without recommending it. I refer you to if you want to know more. I certainly made sure my kids knew it. So good news, privacy rights are protected. What do think in the light of these 2 decisions a lot of people we're mocking the Supreme Court on the Aereo case saying oh they're clearly technologically out of touch. I actually thought in the oral arguments most of them not all of them, most of them are pretty in touch. Sotomayor showed a real understanding of how this stuff works. I think she knew about Roku boxes and Netflix. So I think in this privacy thing they seem very much in touch with what a cellphone is and why it’s important to protect it. They seem like they are in touch. Yes Denise?
Denise: Yeah I think they're more in touch then people give them credit for. I do think you know you're talking about people in an older demographic who are still you know incorporating these tools and their own life and trying to grasp what, how they work and what they mean and doing their best with it and they have really smart clerks as you pointed out Leo.
Denise: So I think they do a pretty darn good job. You know the copy shop with the library card.
Leo: Not so much.
Denise: …is something a cable when it’s clearly not. They've got some hurdles to overcome still and it would be wonderful if we could get someone you know truly versed in what technology means and how it works and the legal considerations around it on the court. I think we're still waiting for that one.
Leo: It’s been you know kind of a truism in technology for years that legislatures, courts, members of congress don't really understand the modern world. But I think as the older generation ages out and the newer younger people get elected and appointed, it’s getting better.
Denise: Yeah it’s getting better and it’s getting different.
Denise: I keep coming back, I have a ten year old. So I see the world of Minecraft sort of constantly.
Leo: Yeah that's a very different world.
Denise: It is isn't it? And the whole approach to the intellectual property in Minecraft is you know just not something I think the Supreme Court would be able to get their head around. What do mean people just create worlds and then everybody gets to use them and there's no copyright and there's no enforcement. So yeah I think we're seeing a generational shift.
Leo: Absolutely, I do dread the day when everything is in 8-bit Mincraft. So you're kids – because Michael just like he won’t stop playing Mincraft, he loves Minecraft. You're kids are that way too huh?
Denise: Oh he loves it yeah, fortunately we don’t need to put him into a 12 step program for it but he’s a fan. He has some specific questions for Chad when you have a chance.
Leo: Yeah Chad’s the king of Minecraft obviously, OMGCRAFT. We're going to take a break. And we're done with the Supreme Court. Thank you Supreme Court for giving us a lot of material but there's a lot more to talk about including Google IO, Apple, Microsoft and Amazon. Even Twitter’s in the news. And I really want to talk about this Facebook study, which apparently I'm the only person upset about the fact that Facebook tried to manipulate our emotions for one week two years ago. But that’s going to all have to wait until after this break. Denise Howell’s here from This Week In Law, so glad to have you. Natali Morris from NBC. And Tim Stevens from upper New York State and CNET. Are you still on a wireless connections because it looks really good?
Tim: No we paid up our dues to Time Warner, had them running a cable up the hill and we are now fully tethered.
Leo: Nice, looks good, I could see your freckles. Never could see those before. I just thought it was an 8-bit problem. All right, right now it’s time for snacks. I wish you were all in studio with me because I got my Nature Box here. We sent some to you right Denise?
Natali: Pretty obvious strategy.
Tim: Yeah I think so.
Leo: Yeah maybe, I mean that had Chrome SO too, but Android seems to be the killer umm…
Tim: Especially as you’re trying to build dependence on things like Android Home and Android Notifications you know. You want that data to be everywhere that you are and so for them to be able to extend Android apps across all these platforms mean that you get more dependent on those Android apps and as your accessibility and visibility into that data gets broader and easier to access, and that means that you have more opportunities to use that data you become ultimately more tethered to their ecosystem and that’s ultimately what they want.
Leo: Good for Google.
Tim: So yeah it’s absolutely great and I think it’s good for the users too. I mean that simple example of getting weather in Detroit on my flight back was ultimately a useful thing not that I couldn’t have gotten that some other way but to have it right there on my wrist. It was pretty nice and I think that’s the type of thing we can just expect to see in the coming years.
Leo: Ben Thompson, who’s been on TWiT before and I really think the world of, he writes a blog called Stratechery and a newsletter, pointed out there’s a difference between Android on the phone and Android on other things like your wrist. Mainly that phones are a must have. The primary difference between a watch and your phone, is that you buy the former, the watch, by choice, and the latter, by necessity. And I think that is a very good point. These other devices are more of a luxury item, you can’t expect them to dominate the same way Android has dominated the phone market.
Tim: You can’t even use your Android Wear Watch without an Android smartphone
Tim: … or Android device of some sort. And I should clarify what I said before, the Samsung Android Wear Watch will work with any Android 4.3 or both phone…
Tim: …not just Samsung.
Leo: You know what? Let me check because I thought when I went to the Play store it said that it was Samsung phones only so I must have misunderstood that. Let me check Android Wear here. Let’s just click this and look at the Samsung Gear Live that’s the watch. And where did I see? Maybe you’re right. Maybe you’re right. I thought I saw text that said with any Samsung phone, but I guess that is not the case so. Good, that’s good news. I ordered the other one.
Denise: Of course throughout this whole discussion I’ve been wondering about how the Supreme Court would think about your watch.
Leo: Yeah! Can they search your watch without a warrant?
Denise: Yeah, but it seems like these devices mostly push you information rather than you having something stored on there.
Leo: Right. Right
Tim: Let’s say you’re getting pulled over by an officer and your hand is on the steering wheel and as the officer is talking to you, you get a notification on your wristwatch that says something that incriminates you and the officer sees that. Is that probable cause in that case to search your phone?
Denise: Well if it’s in plain sight, they don’t need a warrant you know. If your watch is there broadcasting here’s the picture of you with the Crips. You know just coming through on a feed.
Tim: Oh exactly. So turn off your smart watch if you get pulled over by the police.
Leo: But do they need a warrant to swipe?
Natali: To swipe
Leo: I think they should have a warrant to swipe
Leo: Sure. Don’t touch my watch!
Denise: …if it involves deeper access I would think that, again, this decision that just came out deals with phones but…
Leo: I’ll have to have verification.
Denise:…There’s a lot of good language in there indicating
Denise: …we have a lot of devices in our lives that have deep information about us far deeper than anything that we can keep in our pockets. And a watch may fall into that category.
Leo: One thing Google has to worry…
Natali: Speaking of falling in
Natali: You can hide it a lot easier. There are a lot of cavities in your body to put into. Deep pockets, you know you can get creative if you’re really that nefarious. I’m just saying. I think like a criminal
Leo: Next time you see Becky Worley, she has a story about that. You should ask, just next time you see Becky Worley just say where is the strangest place you ever saw somebody hide a watch. And just let her talk. You won’t believe it.
Denise: Ok then
Natali: You got to think like a criminal…
Leo: Think like a criminal
Natali: …If you’re going to be ahead in this world right?
Leo: Yep, yep
Natali: Not that you actually exercise these things but always one step ahead
Leo: Yep plan ahead. Avoid circumcision, that’s all I’m saying. Our uh our um, yeah! Ok, ok, you know what I’m saying here?
Denise: It’s time to come out of that rat hole.
Leo: Yeah, time to move on. I think we’ve covered that. Andrea the only thing that I wanted to ask is if the creepy factor, where are we with the creepy factor with Google? Is this really moving Google more towards a world where instead of you searching, it pushes to you the information it thinks you want? On your wrist, on your glasses, on your car, in your TV set. Have we raised the creepy factor or not?
Natali: Well what Google user is going to be like oh my gosh they know who’s emailing me and who’s calling me and texting. Like what, we expect this of Google I don’t think any of this is like wow that’s above and beyond. Was there any one thing there…
Natali: …that even fit this stuff? This is so much more innocuous than Google Help which everyone was pissed off about like I think they’ve dialed it back
Leo: By the way they are binging that back. But you’re right they’re not going to violate any FDA rules or maybe need FDA permission for this new stuff. I think, Farhad Monjoo talked to Larry Page and Sundar Pichai after the key note, and there’s some really good bits of blog post on this and one of the things he did ask about was creepiness. And he says do you worry that the more devices we have that are connected to Google there’s not just a privacy question but also something like creepiness? Page I think had the right answer. He says, as long as we make these things useful, people will accept them. He says, the problem is we talk about things before people see them. There’s a much more negative reaction. It’s really important for people to be able to experience products otherwise you fear the worst without seeing the benefits. That seems sensible to me. If you can see Google Now and the value of Google Now and use it. It won’t bug you as much, as if you just hear about this idea that Google will tell you oh hey there’s a great deal on pizza down the street and I know you like peperoni so let’s go. Right? Do you think that he’s fair on that?
Tim: I think so.
Denise: I think he’s fair
Tim: I think that’s part of what makes that Facebook research study seem partly bad because there ultimately was no net benefit for Facebook users coming in, in that study. And that is why there was such a negative reaction for that. Whereas with all the predictive search things were getting out of Google those are helpful things so therefore we getting this service.
Leo: He’s saying the right words. He says I’m not, this is Larry Page again, I’m not trying to minimize the issues, for me I’m so exciting about the possibilities to improve things for people my worry actually would be the opposite. We get so worried about these things we don’t get the benefits. I think that’s what happened in healthcare. We decided, largely though regulation that data is so locked up that it can’t be used to benefit people well. We don’t data mine health care data. If we did though we could save 100,000 lives next year.
Denise: I believe that.
Leo: That’s interesting
Denise: Yeah and I think that the other piece of this is the other shoe to drop from the Reilly decision. There’s a lot of speculation about well, you know, if the court is recognizing that we have this strong privacy information on our phones and the information that can be accessed from our phones. You know, how much protection does the Cloud have and is the NSA surveillance constitutional and I think that’s a strong piece of how much people are going to trust Cloud services. You know if you putting all your information there, who gets to see it? Who gets to use it?
Leo: Page says that he’s worried that the media and governments are stoking people’s fears. And that well end up in a state where we can benefit a lot of people but were not able to do that. Now that’s a little self-serving this is Larry Page from last year when he said he wishes there was an island we can go to.
Denise: Maybe Maui
Leo: Yeah, I’ll meet you there Larry.
Natali: Street view it.
Leo: Street view it. No mention of Google Plus, no mention of Google Glass, no mention of Google Home or any home initiatives. Doesn’t mean they’re not doing it. In fact Page in the article says no we’re all in on Google Plus we’re very happy with it. I think this is a long enough keynote and it’s been a long enough segment. We’re going to talk about the Facebook case. I think there’s a few more things to talk about before we wrap things up. You know before we go to the ad though, and by the way I really want to thank you Anthony for filling in for Chad Johnson. Chad is on vacation, he went to Birmingham for I think for a Minecraft convention. So got Anthony Nielson filling in. Before we go to the ad, Anthony, let’s see what you missed, if you missed anything on TWiT this week. It was a good week.
Previously on TWiT
Leo: Un- ****ing believable! Oh Boy!
Tech News 2Night
Sarah Lane: Google I/O developer conference of course and here is the one and only Jeff Jarvis
Jeff Jarvis: The phrase that really resonated with me today was talking about the wearables. Now you can wear a computer on body all day.
This Week in Law
Denise: Aereo pretty much is done.
Sonja West: I think what you see here is some issues about the court trying to deal with this new technology through this method of analogy.
Evan Brown: I really don’t think we should be all that surprised if we can take as a given that the court wanted to see this as a cable company from the beginning.
This Week in Google
Leo: For years Android did feel a little ill designed, a little clunky. These new tools are obviously a sign to address that.
Gina Trapani: I think that the complaint that Android is just not as pretty not as aesthetically pleasing. I think that that’s a done deal.
Andy Ihnatko: I’m really started to believe that there’s going to be a normal sized phone that’s larger than an IPhone and also one that’s kind of like a pop tart.
Twit its free when you watch from work
No one makes tech fun like Chad and Leo on TWiT.TV
Leo: Oh my goodness.
Natali: That’s awesome.
Leo: Hey did, I don’t know if Mike did the, he did not ok. So normally, we would say here’s say what’s coming in the week ahead. We’re so exhausted from the week gone by that we just going to forget it I don’t know if there’s anything coming up. I’m not even going to be here.
Denise: It’s a holiday weekend anyway
Leo: It is, 4th of July. Let’s just relax, set off fireworks, explode things. If you’re not in the United States you can explode things anyways because it’s the 4th of July here. All bets are off, our show today is brought to you by Personal Capital. Really clever idea, I talked to its founder Bill Harris on triangulation a couple years ago and he was looking for a way to help people make better sense of their financial life so they can make better decisions for their future. And he’s come up with this great, free, secure tool that is so cool. It’s Personal Capital, it helps in a couple of ways. First of all, of course hard to keep track of all of your finances, your stocks, your investments your charge card, your bank accounts, your property, all of the things that you’ve got, they’re all on different websites with different logins. Personal Capital collates it all in a single page with easy to use easy to understand graphs and information and then of course it help you analyze what you’re doing. Are you paying for much for financial advice? Have you allocated your assets properly? Are you invested properly so you can retire? When that time comes. Some of you are young enough that you’re probably not thinking about that. Now is the time. I told Chad that and Chad’s been using it for some capital. Now is the time to start thinking about retirement. Because if you start putting stuff aside now and you do it right you won’t have to worry. I love Personal Capital. Signing up just takes a minute, it’ll pay big dividends right way. Total clarity, transparency. Make better investment decisions. And by the way if you do use their financial advisors they are not on commission. They are all certified financial planners. They are fee based but you don’t have to use them. It’s absolutely free personalcapital.com/twit. It’s a smart way to grow your money. And I strongly suggest you sign up and try it today, I’ve been using for two years, ever since I talked to Bill and I’m thrilled. It’s just really, really great. Do you know how your 401k doing this year? Do you know? Maybe not, maybe you should. Peronsalcapital.com/twit. Ok the crumbs, I don t know if I even want to mention this story about Tim Cook. I’m not. I’m not going to. I’m going to take the high ground. Who the hell cares?
Natali: Hell yeah
Leo: Hells yeah
Denise: I don’t care
Natali: Good for you.
Leo: Its stupid and I don’t even know why it’s a story. Of course now everybody, well what? What did he say? I don’t know.
Natali: It’s none of our business. That’s what he said
Leo: It’s none of our freaking business. That’s right. Let’s talk about the Facebook thing. I think maybe I’m upset for no good reason. Turns out Facebook participated in a study. Interesting study, about how what you see on social media affects your feelings. It turns out that in I think it was January 2011 for one week Facebook intentionally manipulated the news feeds for 700,000 users. They gave half of them a happy stories, half of them sad stories and then a week later monitored their posts to see if they were happier or sadder. And surprise, surprise people who saw depressing, sad stores were more depressed and people who saw happy go lucky sorties were happier. First of all, what a waste of time that’s obvious. But ok this was by the way, Cornell was involved in this, I think California University involved in this study. “Experimental evidence of massive-scale emotional contagion through social networks” published in the Proceedings of the National Academy of Sciences of the USA. But Princeton University, the woman who edited from Princeton even said I had the creepy factor was off the scale here. Is it, normally in research, when you do this kind of research to get the consent of the subject? You may not say what you’re going to do. You say we’re going to do a research study, just want to make sure its ok with you.
Natali: When you don’t, you have to get consent from a review board and this study did, which blows my mind.
Leo: You know what the review board was? It was Facebook’s own review board.
Natali: It was a local institutional review board.
Leo: Oh, so it wasn’t Facebook?
Natali: I don’t think it was Facebook. I think they went through the proper science channels. You have to in order to be published.
Leo: How did this happen? Don’t you feel like this is incredibly invasive?
Leo: And messed up. I want to use a stronger word but I’ll use the messed word. Messed up.
Natali: Yes, because how much difference is this than the Stanley Milgram experiment? Which was the impetus
Leo: That was messed up. Yeah
Natali: That was the impetus of review boards. That’s why we have them is because when you manipulate someone’s psyche to think the world is one way that it is not. It has lasting effects on them even if it’s something as stupid as your news feed.
Leo: This is, as the researchers pointing out, part of Facebooks terms of service.
Natali: It is
Denise: Yeah. That is what I was going to say. Don’t anybody think that it’s illegal.
Leo: It’s not illegal
Denise: I’m sure they covered themselves on that front.
Leo: This is what Facebook said…
Natali: But we all know that ethics and legality are two different things.
Leo: …Yes. Unethical, maybe. Legal, absolutely. When users sign up for Facebook they agree their information may be used for quote, internal operations, including, I hope you read this carefully, troubleshooting, data analysis, testing, research, research, research and service improvement. Now of course the other point to be made is that Facebook is constantly manipulating the news feed in ways that we don’t know. Who knows what the hell they’re up to? This makes me want to quit Facebook so bad.
Tim: They did this two years ago which is also disconcerting to me. There was a statement posted just about an hour ago from one of the data engineers from Facebook kind of explaining things a little bit better. Apologizing and saying that they wished that they had been a little more communicative and transparent for their reasoning, but he said we’ve learned a lot and grown a lot in the past few years so we’re better at this now. But still it has been two years of this sort of activity I wonder what other sort of studies are still in the pipeline that haven’t even been published yet. But I do agree that I think they were not acting ethically here but to play devil’s advocate, how is this different than a website using an AB test to decide which headline they should run for a given story? I’ll throw that out there.
Denise: Well I can tell you one thing, Facebook got sued over Beacon. They’re going to get sued over this.
Leo: Good, I hope they do.
Denise: I think they will. I mean Professor James Grimmelmann, who is more far more knowledgeable about this sort of thing than I would ever pretend to be. Has said, you know, if you’re exposing people to something that causes changes in psychological status that’s experimentation and requires informed consent. Should anyway. So I mean, he’s just kind of spit balling as a law professor but if he’s spit balling as a law professor there are plaintiff’s lawyers out there who are putting it in pleading sent and probably thinking about filing.
Natali: As a class action?
Tim: Does that mean…
Leo: ‘Cause you wouldn’t know if you were part of the 700,000? Right, how would you know that?
Leo: I was really sad, January 2011. I was so sad. For a week.
Denise: And all of my, I don’t know. You’d have to go through it and say, assuming you’d even have a record of what was on Facebook then.
Leo: I just think this is, the only takeaway on this little peek under the curtain in how Facebook runs its business, how they are ethically, how they feel about you as a Facebook user, and just you know understand we’ve learned something here. Just pfff. I don’t know I always feel bad when I visit Facebook. I just feel crappy afterwards. I feel like I should take a shower.
Tim: Do people think that AB testing is psychological experiment too?
Leo: I guess it is
Tim: Because ultimately you’re trying to influence someone’s psyche to get them to click and you’re using different headlines to basically influence their decision.
Leo: It’s no different than you go to a restaurant and the chef says do you like this or this? Or the eye doctor says A or B. Giving somebody a choice and the choice is an explicitly requested or explicitly given but you just see well do people like this side or that side. That does not feel as manipulative as somebody modifying your news feed to make me happy or sad that seems really…
Natali: Right. And these researchers had to go to Facebook and say our hypothesis is that…
Leo: That it will
Natali: …the emotional content of your Facebook feed will affect your emotional content or your emotional response so we intend to manipulate this in order to illicit emotional responses from your participants. And that is very different than just seeing what color looks best on your banner.
Tim: Isn’t that the same thing as an editor going to another editor saying I believe that if we change the headline to be this structure we’ll get more people to click on it so therefore lets run both using some optimizing software with AB testing capabilities and well see which one is more effective and therefore they’re going to learn which is more effective and again I’m playing devil’s advocate here I am curious for your thoughts.
Natali: Effective is a different thing because these authors have specified to Facebook that we would like to emotionally manipulate your users. And they said yes. It’s not a matter of which one’s you know get the most click bait which I agree does happen but when once…
Tim: But you’re physically motivating the user if they have to take the mouse and click.
Natali: …Facebook got this abstract then they should have said no.
Leo: Well the good news is fewer than 1/10 of 1% of the users committed suicide so it’s ok. I don’t know but that’s a legitimate question, what if somebody got so depressed they harmed themselves? Because of this stupid study than what’s the liability?
Tim: And there’s one other thing out of this is that I’m not sure that they actually proved anything because if you see sad news you might say I’m really sorry to hear about that. And then ultimately you are contributing to their research but not actually any sadder so.
Leo: Yes, dumb. The whole thing is dumb. And by the way you mentioned Natalie, I did quit Facebook once I wish I weren’t on Facebook but I feel like I have to use it so I can report on stories like this. I need to have the experience of it. So I’m taking the hit for you.
Denise: How did this come to light?
Natali: He’s taking it for the team
Leo: I’m taking one for the team. I don’t want to use Facebook.
Natali: He’s taking a profile for the team.
Leo: You know what I did give up though and I’m very proud of myself that stupid Simpsons Tapped Out.
Denise: It’s taken awhile
Leo: Well you know I was really hooked on it for a while and then Electronic Arts crashed it and I was actually relieved for 6 months I couldn’t use than all of a sudden, Lisa, said you’re Tapped Out seems to be back. I went ..
Leo: …NO they keep pulling me in and for the last month, it’s been about a month I’ve been doing it and I realize that it’s like an hour a day I’m farming and tapping, so I’m very proud of myself and just deleted and Lisa did too. We deleted our Simpsons Tapped Out because Farmville 2 is coming and I really want to have room on the IPad for that. Just kidding
Denise: Did someone out Facebook or did they out themselves on this research thing?
Leo: The paper was published.
Denise: Ah there we go
Leo: Somebody started reading this and what? You did what? Now all of the you know, I think there will be more, we will hear more about this.
Denise: So you know people need to vote with their feet if they don’t want to be experimented on.
Leo: Yeah, I want to vote with my feet I want to quit Facebook. I think this is ridiculous. Finally,
Natali: I’m not going to
Denise: I would like to
Leo: Blubber has set a new world record he played the entire Super Mario Bros game under 5 minutes. 4 minutes 57.69 seconds, beating the previous speed run by 4/10 of a second. It is ladies and gentlemen, an official world record. Congratulations to Blubber. Thank god he doesn’t play Simpsons Tapped Out. We could sit and watch this for, it’s only 5 minutes. Seems like that’s slowing him down, like the load is slowing him down. It didn’t say what platform he played this on. That is just weird. Ladies and gentlemen, with a name like Blubber are you surprised? Ladies and gentlemen thank you so much for joining us. Thank you to Denise Howell we appreciate it every week. This Week in Law is you know is a voice for sanity and understanding of how all this stuff works and I am so greatly to you for doing that every week. And especially when things like Aereo happen. So appreciate you being her, thank you.
Denise: Thank you so much for having me an please people realize that The Internet’s Own Boy the movie documentary of the history of Aaron Swartz came out on Friday and is available for everyone to watch and everyone should watch it.
Leo: Is it on Netflix? Is it where can we see it?
Denise: Amazon and Vimeo and I think ITunes. So…
Denise: and if you’ve donated to the Kickstarter Campaign you probably already have the ability to watch it on Vimeo so amazing, amazing film. Incredibly important to pay attention to organizations like the EFF and Public Knowledge and the Center for Democracy and Technology and the Electronic Privacy Information Center and all of these great advocacy groups that are out here trying to make sure that our rights are protected and that laws work the way they are supposed to as they didn’t in Aaron Swartz’s case
Leo: Such a sad story. And such a loss frankly to all of us.
Leo: Thank you Denise for reminding me
Denise: Sorry don’t mean to put a downer at the end of the show
Leo: No I wanted to plug this and I’m so glad you remembered. It really is a big deal, The Internet’s Own Boy, you can search for you can buy it for 6 bucks, 7 bucks on Amazon and other places. That is well worth seeing and it’s not a downer. It’s sad what happened but I think it important to understand
Leo: Thank you so much Natali Morris for being here.
Natali: No problem
Leo:She’s at NBC, anything you would like to plug besides that fabulous Requick Application?
Natali: Requick is it. We got a new promo up that you might want to watch that explains the speed reading app for IOS and tha’s about it.
Leo: Readquickapp.com and the promo was the demo video so people could watch this and understand?
Natali: I don’t think it’s up on the site. I’ll put YouTube video in the chat. We’ll put it up. It’ll be up by the time
Leo: By the time you see this
Natali: We just finished it
Leo: Good exciting. When you say we, do you mean you and Clayton?
Natali: Yeah, we’re a big team of two
Leo: Going in the backyard, and you do a little video maybe some action figures, that kind of thing?
Natali: No, our faces. We don’t use the money makers, its animated.
Leo: They money makers we keep for ourselves. Thank you Natali, always a pleasure
Natali: Yeah thank for letting me play you guys. It’s always fun to talk about the news and this is a good week to join in
Leo: Sure was thank you. Tim Stevens automotive editor an CNET. He’s actually editor at large, he covers whatever the hell he wants to cover.
Tim: It’s very true and I’m excited to announce that I’m going to be doing a video series on the Google Lunar Xprize this summer which is going to be debuting on Tuesday. I’m going to be on CBS This Morning, Tuesday morning with the president of Xprize to talk about it so if you happen to have a TV through Aereo or otherwise, I would recommend you tune in and check it out.
Leo: All I get on Aereo now is kuuuuuuuh. Thank you Tim , Natali, Denise, thanks to all of you for being here. Thanks to a great live studio audience always a pleasure. If you want to be in our studio audience email email@example.com well put a chair out for you. And maybe if we get in a few more of these cardboard boxes we’ll put something under the chair that would be kind of fun. But if you can’t, we always like you watching live on the internet at live.twit.tv. We do the show Sunday afternoons 3pm Pacific, 6pm Eastern, 2200 UTC and if you’re in the chat room at IRC at twit.tv we can have interactions, we can talk, we can be part of the same thing. If you can’t watch live though don’t worry because we make on demand audio and video available on filmon.com and no twit.tv and wherever podcasts are appropriately and legally aggregated for distribution to your device. Thanks for joining us I’m going to take the week off next week. Father Robert Ballecer will fill in for me is that right? Yep. He’ll be doing the show and I’ll be back the following week. I’m going to, I’m here today but I’m gone to Maui. Thanks everybody, well see you next time! Another TWiT is in the can. Bye bye